: February 20, 2011 |
: Civil Laws
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Law of limitation:-
The Code of Civil Procedure confers a right to appeal, but does not prescribe a period of limitation for filing an appeal. The Limitation Act, 1963, however, provides the period of filing up appeals. It states that the appeals against a decree or order can be filed in a High Court within ninety days and in any other court in thirty days from the date of the decree or order appealed against.
It is for general welfare that a period be put on litigation. Further, it is a general principle of law that law is made to protect only diligent and vigilant people. Equity aids the vigilant and not the indolent. Law will not protect people who are careless about their rights. (Vigilantibus non domientibus jur A subventiunt). Moreover, there should be certainty in law and matters cannot be kept in suspense indefinably. It is, therefore, provided that Courts of Law cannot be approached beyond fixed period. In civil matters, the limit is provided in Limitation Act, 1963.
The 'Law of Limitation' prescribes the time-limit for different suits within, which an aggrieved person can approach the court for redress or justice. The suit, if filed after the exploration of time-limit, is struck by the law of limitation. It's basically meant to protect the long and established user and to indirectly punish persons who go into a long slumber over their rights.
The statutory law was established in stages. The very first Limitation Act was enacted for all courts in India in 1859. And finally took the form of Limitation Act in 1963.
A citizen is not expected to master the various provisions which provide for limitation in different matters but certain basic knowledge in this regard is necessary. For instance, Section 12 of the Limitation Act lays down certain guidelines regarding computation of limitation period. It says that in computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned, shall be excluded.
Further, the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from shall be excluded. However, any time taken by the court to prepare the decree or order before an application for a copy thereof is made shall not be excluded.
Section 14 of the act, similarly, says that in computing the period of limitation for any suit, the time during which the plaintiff has been prosecuting in civil proceedings, whether in a court of first instance or of appeal or revision against the defendant shall be excluded where the proceedings relate to the same matter in a court which is unable to entertain it on account of defect of jurisdiction or other cause of a like nature.
What does limitation period mean?
The law prescribes different periods within which a person who has a grievance should go to court. For example, if somebody has borrowed your money and not returned it, you should approach the court within three years from the date you lent the money. If you don't go to the court within that time, the courts will not be of help to recover your money. This is called the limitation period. After the limitation period, you cannot enforce your rights in a court. The Limitation Act 1963prescribes different limitation periods for different kinds of claims. Some other Acts such as the Consumer Protection Act also prescribe limitation periods
In the bare act:-
Bar of limitation (1) Subject to the provisions contained in sections 4 to 24 (inclusive) every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as defense;
(1) For the purposes of this Act,
(a) A suit is instituted,
(i) in an ordinary case, when the plaint is presented to the proper officer;
(ii) in the case of a pauper, when his application for leave to sue is a pauper is made; and
(ii) in the case of a claim against a company which is being wound up by the court, when the claimant first sends in his claim to the official liquidator;
(b) any claim by way of a set-off or a counter claim, shall be treated as a separate suit and shall be deemed to have been instituted-
(i) in the case of a set-off, on the dame date as the suit in which the set off is pleaded;
(ii) in the case a counter claim, on the date on which the counter claim is made in court;
(c) an application by notice of motion in a High Court is made when the application is presented to the proper officer of that court.
Short title, extent and commencement - (1) This Act may be called the Limitation Act,1963.
2. It extends to the whole of India except the State of Jammu and Kashmir.
3. It shall come into force on such date as the Central Government may be notification in the Official Gazette, appoint.
BAR OF LIMITATION – Subject to provisions of sections 4 to 24 of the Act (i.e. Limitation Act),every suit instituted, appeal preferred and application made after the ‘prescribed period’ shall be dismissed, although limitation has not been set up as a defence. [section 3(1)]. - - ‘Period of limitation’ means the period of limitation prescribed for any suit, appeal or application by the schedule to the Act and ‘prescribed period’ means the period of limitation computed as per provisions of the Act. [section 2(j)].
PERIOD AS PRESCRIBED IN SCHEDULE TO THE ACT – The period has been prescribed in Schedule to the Act. Generally, it is as follows – (a) 3 years for a suit relating to accounts, contracts, declarations, decrees, suits relating to movable property, recovery of law suit under a contract etc. (b) 12 years for suits relating to possession of immovable property and 30 years for mortgaged property (c) One year for suit relating to torts (3 years for compensation in certain cases (d) 30 to 90 days in case of appeals under Civil Procedure Code and Criminal Procedure Code. - - Period of filing appeal and application can be extended if proper cause is shown (but not the suit) [section 5].
IF COURT IS CLOSED ON LAST DAY – If court is closed on last day of limitation, suit, appeal or application can be filed on next day when Court reopens. [section 4].
CONTINUOUS RUNNING OF TIME – When once period of limitation starts running, it continues even if there is any subsequent disability or inability to institute a suit or make an application. [section 9]. - - However, if at the time when person is entitled to file a suit or make application, if a person was disabled (as he was minor or insane), the period of limitation will start after the disability is removed. [section 6(1)].
A misjoinder of parties or of cause of action shall be deemed to be a cause of a like nature mentioned above. Under Section 15 of the act, the time during which an injunction or restraint order issued by a court remains in force, is to be excluded while computing the period of limitation for any suit or application for the execution of a degree. In cases, where the previous consent or sanction of the government or any other authority is required under the law, the time required for obtaining such consent or sanction shall be excluded. Where a defendant has been absent from India, the time during which he has been absent can be excluded from the period of limitation.
In case, the prescribed period for any suit, appeal or application expires on a day when the court is closed, the suit, appeal or application may be instituted on the day when the court reopens, as provided under Section 4 of the act. This is based on the principle "actus curial neminem gravabit", which means that an act of court shall not prejudice any one. The court can condone the delay, if satisfied that it causes were beyond the control of the plaintiff too.
Condonation of delay Rule 3-A:-
Condonance may be made when an accuser has previously forgiven or condoned (in some way or at some level) the act about which they are complaining. In some legal jurisdictions, and for certain behaviours, it may prevent the accuser from prevailing.
Rule 3-A has been inserted by the Amendment Act of 1976. It provides that where an appeal has been presented after the expiry of the period of limitation specified therefor, it shall be accompanied by an application that the applicant has sufficient cause for not preferring the appeal within the time.
Prior to the insertion of rule 3-A, the practice was to admit such an appeal subject to the opinion regarding limitation. This practice was disapproved by privy – council, and it stressed the expediency of adopting a procedure for securing the final determination of the question as to limitation before admission of appeal. This rule is added to give effect to give effect to the recommendation of the privy council.
As observed by the Supreme Court in the State of M.P v. Prandeep Kumar, the object of the provision is two-fold; frstly to inform the appellant that the delayed appeal will not be entertained unless it is accompanied by an application accompanying the delay; and secondly, to communicate to the respondent that it may not be necessary for him to get ready on merits as the court has to first deal with an application for condonation of delay as a condition precedent. The provision is, however, directory not mandatory. If the memorandum of appeal is filed without an accompanying application for condonation of delay the consequence is not necessarily fatal. The defect is curable.
Raj Bahadur Singh & Another v. D.J. & Others(Civil Misc.Writ Petition No.12718 of 2002) :
According to the learned Judge the application 4-Ga had been rejected on two grounds firstly being barred by limitation and secondly being without any valid ground. Thus, the appeal filed by the respondents was fully maintainable. He further submitted that the learned District Judge vide order dated11.2.2002 had admitted the appeal while over ruling the preliminary objections and the writ petition filed by the petitioners is not maintainable.
In the present case the question is as to whether an appeal lies against an order passed by the trial Court wherein it had by a common order rejected both the applications under section 5 of the Limitation Act and Order9 Rule 13 C.P.C. on the ground that the application is barred by Limitation and no ground for condonation of delay has been made out, or a revision lies. If it is held that no appeal lies then the order admitting the appeal is wholly without jurisdiction and in such a circumstance a writ petition is maintainable.
State of Jammu and Kashmir v/s Ghulam Rasool Rather
J&K Limitation Act, S. 3 – Condonation of delay - Sufficient cause - What amounts to - On the facts of the case, held that the cause shown was reasonable and satisfactory - Delay condoned.
The expression "sufficient cause" in section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice. Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to deliberate tactics, but seek their remedy promptly. While considering a case for condonation of delay, the court must always remember that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not sufficient to turn down his plea and shut the door against him. If the explanation does not smack of mala fides or it is not put-forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. The discretion exercised in the matter of condonation of delay should be proper and judicious.
Thus we can understand from the above examples that law of Limitation and Condonation of Delay are two effective implementations in the quick disposal of cases and effective litigation. On the one hand if the law of limitation keeps a check on the pulling of cases and prescribes a time period within which the suit can be filed and the time available within which the person can get the remedy conveniently. The law of Condonation of Delay keeps the principle of natural justice alive and also states the fact that different people might have different problemas and the same sentence or a singular rule may not apply to all of them in the same way. Thus it is essential to hear them and decide accordingly whether they fit in the criteria of the judgement or whether they deserve a second chance.
# www.dateyvs.com/gener08.htm viewed on august 28 2010
# www.answers.com/topic/condonation viewed on august 28 2010
# (2000)7 SCC 372
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